HKSAR v. CHEUNG TUNG LAM

HCMA519/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.519 OF 1999

(ON APPEAL FROM SPCC 1983 OF 1999)

---------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was charged with one count of assault occasioning actual bodily harm. The particulars stated that the appellant had, on 20 January 1999, at a place outside New Astor Hotel, Carnarvon Road, Tsim Sha Tsui, Kowloon, assaulted Lau Hiu Lee, thereby occasioning actual bodily harm to the said Lau Hiu Lee.

2. The appellant pleaded not guilty to the charge. She was convicted after trial and was fined by the learned magistrate. She sought to appeal against the conviction.

3. The prosecution case was that PW1, the victim, and the appellant knew each other. In fact they had both worked in a karaoke before. At the time, PW1 wanted to arrange for her father, who was in China, to come to Hong Kong for sight-seeing and the appellant offered to assist by getting the relevant documents. However, the appellant said $10,000 was required for making the arrangement. PW1 accepted and paid the appellant. Later, the appellant asked for more money but was turned down by PW1. They then had an argument regarding the return of the original $10,000. The relationship further deteriorated when the appellant agreed to pay back part of the money by cheque which was subsequently dishonoured. Later an appointment was made between PW1 and the appellant on 20 January 1999 to discuss the matter. In short, what finally happened in the meeting was that the appellant used a mobile phone to hit PW1's face and she also scratched PW1's left wrist area. PW1 suffered injuries as a result and the medical findings were as stated in the medical chit.

4. At the trial, the appellant had also given evidence. Her case was that she had indeed borrowed a total of $14,000 from PW1 but the debts had all been repaid. However, PW1 refused to return the IOU to her as she said it was lost. Then PW1 started making phone calls to pester the appellant for the interest on the loan. Under pressure, the appellant had agreed to repay $7,500 by cheque to settle the matter, but later PW1 still asked for more. On the day in question, she did meet PW1who asked her to pay cash in exchange for the cheque. She refused. There was a scuffle and struggle between them but she never hit PW1 with a mobile phone. The appellant also called a defence witness to support her account.

5. In the end, the learned magistrate having resolved the issue of credibility, decided to accept the evidence of the prosecution witnesses. He found that PW1 was an impressive witness as she was frank and direct in answering questions. He rejected the defence's account of the event. He found that both the appellant and her witness were evasive in giving evidence.

6. The learned magistrate had taken into consideration of the clear record of the appellant and yet he rejected her evidence. He made the findings that the appellant had assaulted PW1 as described by the latter. The magistrate had also properly reminded himself of the onus and burden of proof.

7. In conducting her own appeal, the appellant stated that the magistrate was somehow angry with his lawyer so he did not look at the police notebook which contained no reference to such a fight. However, as the respondent had pointed out, the trial magistrate was aware of the issue regarding the notebook and had dealt with them in his Statement of Findings.

8. Having considered the evidence of the case, the Statement of Findings and the submissions, I came to the conclusion that there was no merit in this appeal. As I had explained to the appellant during the hearing, my role was not to retry this case. The magistrate had made findings based on his consideration of the evidence and the credibility of witnesses. There was no proper ground to disturb the conviction. This appeal must be dismissed.